*1 107 animals, degree education her membership in Guard. the National
her is relevant the context
Such evidence mitigation special it relates to issue as impact of of the victim and the
the character family and close Mends and
her loss on her Ap under Rules 401 and 402.
is admissible to demonstrate that this evi
pellant fails been excludable under
dence should have needlessly or that its
Rule 403 as cumulative
prejudicial effect on the was substantial
ly probative value. This of its excess merely gave jury information on Birky more was—that she was
who Miss just judge did not a name.2 The trial
than admitting evi his discretion
abuse relevant on the issue of
dence as given ruling. should be to his
and deference (Tex.Crim. State, 35, 822 41
Lane v. 379,
App.1991); Briddle v. (Tex.Crim.App.1987). comments, I concur in the
With these
judgment of the Court. FORD,
Tony Egbuna Appellant,
v. Texas, Appellee. STATE
No. 71760. Texas, Appeals
Court of Criminal
En Banc. 21,
Feb. 1996. 3,
Rehearing
April
Denied
Arizona,
(1991).
Supreme
majority
high
Courts of
courts have
2. A substantial
of state
Georgia
victim
impact
Louisiana have held that
evidence is admissible
ruled that victim
capital
impact
admissible due to re
punishment phase
evidence was not
at the
trial
admissibility
against
punishment.
People
of such evidence
See
strictions
relevant on the issue of
937,
Howard,
103,
914,
respective
their
states.
under the statutes of
147 Ill.2d
167 Ill.Dec.
1044,
(1991);
acknowledge
highest
Utah and
courts of
Homick v.
588 N.E.2d
(1992);
sentencing
Oregon,
schemes similar
with
825 P.2d
Conner
108 Nev.
Texas,
1993).
(Miss.
have held that victim
632 So.2d
Alabama, California, Delaware,
admissible as it is irrelevant
Flori
evidence is not
Courts in
Ohio,
da, Idaho, Indiana,
Pennsylva
need
Maryland,
context of the
issues
Metz,
nia,
jury.
Or.
similarly,
lessly
State v.
Virginia, Wyoming
inflame
have ruled
Carter,
(1994);
App.
State v.
Payne.
Jersey’s Supreme
SUFFICIENCY AT PUNISHMENT error, point In first he con- the evidence was insufficient for tends that Garney, Paso, appellant. El for Norbert J. an affirmative answer to to return question dangerousness. future Landinger, and Karen L. John L. Davis evening that on the of Decem- record reflects Paso, Attys., El Hut- Asst. Dist. Robert A. 18, 1991, appellant and a cohort forced ber tash, Austin, Atty., State’s the State. way mother with their into the home of a proceeded to three of her adult children and decedent, mother, and OPINION rob them. The his sister was one sister were shot. Another OVERSTREET, Judge. at, died from shot but missed. The decedent indictment, appellant In a four count gunshot wound to the back of his head. charged with one count of murder following is a more detailed recitation of during robbery committed the course of adduced at trial. evidence attempted capital three counts of murder family On December 1991 the Murillo robbery, during committed the course of all play attended a Christmas to see their cousin alleged to have been committed on or about perform. play At the conclusion of the County. December 1991 in El Paso mother’s, family Myra departed to their Con- July appellant was convicted in the Murillo’s, cepcion quick home for a dinner. County 346th District of El Paso children, Myra and her three The mother caрital murder and of the three counts Lisa, Magdalena, planned Armando and all attempted capital During pun murder. shopping later that eve- do some Christmas phase jury affirmatively ishment an dinner, ning. After Armando was swered the issues set forth in Article television, Myra Mag- family watching room 37.071, 2(b)(1)(2),V.A.C.C.P., negative readying in her bedroom dalena was herself ly answered the special issue set forth shopping trip, for her and Lisa was 37.071, 2(e), V.A.C.C.P., whereupon Article mother called out to her chil- kitchen. Their appellant the trial court sentenced to death.1 inquire if had point dren at some appeal Direct of that death is auto sentence had knocked at the heard the two men who 37.071, 2(h), matic. Article V.A.C.C.P. On looking apparently door. The two men were appeal, appellant points direct raises five “man of the house” and the mother error. After permit had refused to their entrance. Appellant challenge does not the sufficien- they the children informed her had heard cy guili/innocence. the evidence How- previous nothing, each returned to his or her ever, challenge sufficiency he does task. support jury’s affirmative Myra Magdalena stepped answer to the first issue. We will Moments later family point challenging hallway encourage her first addrеss that out into the moment, dangerousness special hurry up. At that she saw her answer to the future issue, retreating probability and her brother from the i.e. whether there was a mother backing up as if appellant doorway. criminal acts of Her mother was would commit unpublished opinion by peal, the El Paso 1. The assessed of three concur in an attempted capital rent sentences for the three Appeals. life No. 08-93-00430-CR Court of (Tex Ford Appellant's appeal Paso, murder of those convictions. May .App.- delivered El jurisdic three cases was dismissed for want of tion, pet.). no failing timely ap due to file notices of shot, life, jumped up comfort Armando. crouching son she was in of her kind of fear down, had Appellant and her brother looked as he hooked his arm around her just right Myra hit in the head and huddled been shot her on the side of the head. straight the comer. She testified that appellant into Magdalena testified that had seconds, appellant she saw within few properly aim it gun his around to curve standing right, to her next to her at the Upon before he shot her. her mother’s head Subsequently she entry to her bedroom. point range, being shot in the head at blank they his cohort. testified that both saw She Myra Myra Concepcion fell to the floor. guns. Lisa testified that she “heard had Magdalena she would be next. As believed noise, racket, in, barging just a like lot her, Myra stepped Mag- toward somebody kicking wood.” saw two She gun pushed rose and him. The dis- dalena *4 strangers hallway guns. Appel- with ground charged pretend- fell to the and she pointed gun lant’s cohort at Lisa and her. ing to be hit. The bullet had missed into den area. walked her off and she heard her Another shot went left, Myra “gulp.” After the robbers sister the four
Appellant and his cohort ordered help. Ar- Magdalena phoned for got up and individuals to kneel on the floor and to The gunshot from the wound. pray. Appel- mando died quiet. began Murillo’s Appellant as money, jewelry. others survived. was identified first then lant demanded demands, shooting, being dominating, doing the and as Throughout appellant these occasionally talking giving the most yell family, doing the most and and threaten the pausing gun. Armando orders. to strike with very Recognizing appellant’s cohort as “a and Appellant guilt/innocence testified at neighborhood,” Myra
familiar face in the steadfastly par- punishment. at He denied Magdalena attempted gaze to divert her shooting, and ticipating the home invasion being recog- away prevent from cohort to that he had remained but rather insisted they pray as nized. The four continuеd to outside, initially sitting in but the vehicle jewelry. Finally, were asked to remove their out, getting two associates en- then while keys appellant for the to the car asked the offense. tered the home and committed Myra Magdalena parked outside. When hes- kill or that he did not shoot He maintained keys, releasing automobile her itated her anybody. awkwardly and threw sister retrieved them keys appellant. The skinned them towards ap- nor punishment, At neither State Myra Magdalena his face and hit the wall. any psychiatric psycho- or pellant presented was, appellant’s response testified that present logical testimony. The did not State that, you, just just going was “[F]uck record, prior criminal unad- any evidence of just going fucking I’m blow him. Now offenses, character.2 The judicated or bad appellant you testified that all[.]” blow She testimony from the de- only presented State began shooting. then mother, father, sisters. and two cedent’s that the dece- They testified about the effect in the back of the Appellant shot Armando injuries was seeing death and the others’ Myra Concepcion, upon her dent’s head. entered into defense and the State had marked as De- 2. The record contains an exhibit "Stipulation” attorney stipulation fendant’s Exhibit signed by which is of evidеnce. That an oral prosecutors, attorneys two comported the two stipulation which then announced himself, representing appellant, appellant and above-quoted stipulation. When written with the judge. the trial It states: asked, prosecutors one of the the trial court Texas, defendant and Now come the State of yet stipulation been re- had not stated that that counsel, agree stipulate and and defense attorney writing, whereupon appellant’s duced to following: agreed. court then informed The trial Ford, defendant, Tony has never been evidence, stipulated meaning i.e. any felony or other convicted of a State, in this by controverted not contradicted or which is against the United States. the laws of side, have such indicated that it would and either appear Though that this exhibit was it does not attorneys signed by writing reduced evidence, into at the ever offered or received defendant, by defense and for the State and prior punishment testimony to for- conclusion of court. approved the trial and then it would be attorneys mally resting, stated one of
HI personal cir- age and presented 5. The defendant’s having on them. The State also offense; time of the cumstances exhibits, which were medical reсords of shooting two survivors. acting under the defendant was 6. Whether of another at or the domination duress Appellant’s mother testified of the of- of the commission time 19, 1973, making him 18- was bom on June fense; years-old Appel- of the offense. the time evidence; Psychiatric 7. sister, presented lant also from his family him and three friends who had known evidence. Character years. They for a number of indicated See, Johnson, 532; Keeton e.g., 853 S.W.2d at any appellant previously had not exhibited (Tex.Cr.App aggression, opined violence or acts .1987). ease, however, The evidence regula- that he would follow the rules and generally limited to the offense itself. society, advantage prison tions of would take Johnson, Nevertheless, “No noted we opportunities, of rehabilitation and would not in a vacuum. The circum exists killing danger be a future if incarcerated for life. offense, sur stances of the and the events Appellant himself testified at rounding may provide greater probative prison rules indicated that he could follow regarding value than other *5 regulations and if incarcerated for life. He probability of future acts violence.” John cross-examination, stating that also cried on son, 853 at 532. happened he would not want what had cause, In the instant sevеral factors anybody, happen Murillo’s to to and acknowl- noteworthy. Appellant initially are took edging that he also felt bad that he was Dur during phases of the trial. stand both facing possible penalty. a death He added participation of ing guilt/innocence, he denied case[,]” “[ejverybody in is a victim this shooting placed on two and the blame including in in some instances himself that he they other individuals. He insisted that went agree jury’s did not with the verdict because numer inside the house and committed the anything wrong sitting he did not do besides ous acts violence while he remained unin in outside the truck. above, appel volved outside. As discussed punishment and continued to lant testified at determining sufficiency involvement, spite jury’s guilty in deny of the jury’s answer to the issue con appellant’s A verdict. could believe cerning dangerousness, future the evidence testimony illustrated a lack of remorse for in light must be viewed most favorable to taking and the of the decedent’s life Virginia, answer. Jackson v. damage sister. he caused to his mother and 2781, 2789, 319, 99 U.S. S.Ct. L.Ed.2d However, telling during the most (1979); Johnson v. 853 S.W.2d guilt — the evidence phase of the trial was denied, (Tex.Cr.App.1992), cert. just before he killed statement -, 126 L.Ed.2d family prayed and the decedent. While the (1993). This Court has often cited numerous lives, testimony plead for their the mother jury may factors a consider when determin keys appellant demanded the indicated the answer to that issue. These house, and that to the car front include, but are not limited to: factors keys him and acci- Lisa threw the when offense, 1. circumstances of the him, enraged dently appellant became hit including the defendant’s of mind state said, that, you, just I was “[F]uck working and whether he or she was alone just just going I’m going to blow him. Now parties; or with other fucking you This statement all[.]” blow 2. calculated nature of the defendant’s First, disturbing two factors. demonstrates acts; premeditated inten- depicts a the statement forethought and deliberateness ex- 3. The or the man of the tion to kill the decedent execution; by the crime’s hibited house. he had ever entered the house before record, Second, disregard a callous prior portrays criminal The existence crimes; appel- Apparently, human life. severity prior the value of and the Myra questioned, killing Magdalena was people lant more than he over believed initially appropri- continuing objection upon relevancy had intended would be an based response hitting ate Lisa’s action him Rule and all 403 as to evi- keys. Appellant’s with car actions illus- dence, strangers felt about about how she disturbing Ap- trate a escalation violence. after the offense. She testified instant about pellant’s response accidentally having been how close and her deceased had she brother by keys hit to decide to kill the rest been, friends, like who had best attended family. family Members were high together and shared common in- school attempted their knees as to take terests. testified about her mother She also disregard Appellant’s for human their lives. being “forever a wheelchair” had by grab- life his is also illustrated actions child; her like a taken care of i.e. lunged bing help mother as she her reversed, being 21- their roles were with her life, prayed appel- dying son. As she for his years-old having child of her own. deliberately posi- lant seized her head and Lisa asked what her then testified. When weapon at her and fired. tioned the head are, every physical she said that reminders disregard Remorselessness and for human day through she went sees where the bullet determining life have been considered bullet, her and which was not re- feels the sufficiency to support of the evidence dangerous moved it was too to take because probability committing finding of criminal surrounding pieces lung. out all the her She of violence that would a con acts constitute alsо how her mother is a testified about See, tinuing society. e.g., threat Heisel totally being dependent person, different (Tex.Cr. betz v. wheelchair, upon daily medicine for the App.1995); Allridge v. bath, life, people rest of her and other — denied, (Tex.Cr.App.1991), 488-89 cert. *6 dress, depends on and cook for her —“She -, 101, 114 L.Ed.2d 68 S.Ct. 126 everybody everything.” Lisa also testi- for State, (1993); 692, Williams 668 S.W.2d night, fied she herself hates i.e. denied, (Tex.Cr.App.1983), 696 cert. 466 U.S. scary unfamiliar or very it was with unex- 2161, (1984); 954, 80 104 S.Ct. L.Ed.2d 545 noises, pected persistent banging or or State, 925, 933 and S.W.2d Crawford knocking startling her. denied, (Tex.Cr.App.1980), cert. 452 U.S. (1981). L.Ed.2d 431 S.Ct. We hearing competency a After short outside the evidence of lack conclude that jury, presence decedent’s remorse, accept responsibility of refusal to jury, testi- mother testified. Before she actions, attempt place to the blame his injuries fied about that she received dur- others, upon specific Mu and actions at the offense, ing the course of the instant i.e. rillo home were sufficient for a rational right eye, gunshot her and still wound behind probability to determine that there a missing having portion over the of her skull of vio that he would commit criminal acts shot, area with bullet where she was continuing lence that would constitute a brain, remaining her in her which affected society. Appellant’s point threat first of having vision. testified about been She also error is overruled. side, only having paralyzed use of on the left difficulty having stretching her left arm and II. fingers flexing, being her out and IMPACT EVIDENCE VICTIM being also testified about able walk. She work, having unable. to been transformed error, appellant point In his third per- from a to “a disabled businesswoman claims, allowing in “The trial court erred said that because her son son[.]” She also testimony into impact’ evidence dur- ‘victim killed, being felt like she was embalmed she phase of punishment trial.” The [his] body like and had a and felt she cried dead permitted trial court the survivors time, that there is no father, inside all and knew shootings, and the decedent’s to testi- son her mourning to her for her nor fy injuries end concerning their and the effect had been grief. that she upon their lives. She added incident
H3 Honor, my stated, I ask that ‘Tour any of her coma and was unable to attend witnesses, if objection all ceremony/funeral say goodbye running extend to son’s type matter.” they testify the same him.3 right. I note responded, “All The trial court of the decedent testified about The father your running ob- your objection. grant I’ll of- having at the site of the instant arrived it.” jection on the issue and overrule scene, bloody seeing a horrible fense and daugh- hallway, and his with his son approved the use of This Cоurt has and former wife there. He also testified ters objection; continuing “running” fact had affect- at about how he been are some specifically stated that there has by ed his son’s death: objection “is not such an situations where Well, lot, my boy I it’s affected miss error, actually only adequate preserve but ways. just put in many It’s hard to me Ethington v. desirable.” words, I do miss him a lot. And due to but (Tex.Cr.App.1991). This Court 858-59 this, know, breaking in you two men into appropri suggested not be has that would house, coming kicking in door and running objection preserve ate to allow a guess I’m guns, in with I’m afraid. by any on a matter referred to witness error myself my family. afraid for and afraid for any during a trial. Goodman v. daughters He also testified about how his (Tex.Cr.App.1985), rev’d on being very courageous, and were brave and Goodman, parte grounds, other Ex them, sorry especially how he feels (Tex.Cr.App.1991). Neverthe S.W.2d 383 by night. stating He concluded that it was less, has included caution while this Court horrible, very Bloody, “a horrible scene. ary making running ob admonitions about cold[-]bloodedmurder.” jections, running objections fits the use of object by failing The State asserts 52(a)’s within purview Tex.R.App.Pro. of Lisa and the decedent’s requirement timely specific trial ob father, appellant waived error as to their complaints. jections preserve appellate testimony, objecting every and that As this Court stated Sattiewhite type present- that that time evidence was (Tex.Cr.App.1989), cert. ed, he waived the claim even as to the testi- denied, 226, 112 mony of the other two witnesses to whom he (1990), purpose lodging “[t]he L.Ed.2d 181 *7 object. did timely specific objection inform a and is to above, As noted when the first of the wit- objection the trial court of the basis nesses, Myra Magdalena, questioned, ap- was give opportunity an to rule and to the court objection pellant continuing made a based specific objection as the evidence is on the relevancy any upon and Rule 403 as to and long running ob “[A]s introduced.” as the impact Specifically, appellant all evidence. objection, stating jection timely constituted said, obviously impact “This is evidence that specific grounds ruling, for the the move time, presented objecting I’m is and [,] court to make ... then ment desired the any impact and all evidence.” The trial preserved by an error should be deemed objection responded, impact court ‘Tom* n. 4. This appellate court.” Id. at 284-85 evidence is overruled. You’llhave continu- opined that are situations Court also “there objection something, on that. If there is objection, running made with the wherе a objection though, that calls for another judge” much express permission of the trial [interruption omitted] another —raise time— appropriately contributes to the order more attention.” that to the Court’s ly of trial than does a redundant flow objections. continuing disruptive series of individual Appellant did not renew his ob- appellant was jection the dece- Id. The record reflects that when Lisa testified. When clearly objecting any impact “to and all evi testify, appellant dent’s mother was called to unable to Appellant particular complains in a wheelchair and was of the testi- courtroom mother, legs. complains specifically He further mony stand on both of the decedent’s began crying, apparent- during testimony upon prejudicial physical her she effect of her based leading juror’s crying. upon jury. ly impairments entered the She 114 testifying family as “to all witnesses” to the
dence” victim’s is.relevant clearly such. The trial court understood not the pen- decision as to whether or death complaint adversely such and ruled thereon. alty imposed.” Id. no should be “There is appellant preserved We conclude that has differently reason to treat such evidence than appellate review. his claim other relevant evidence is treated.” Id. Appellant testimony claims that earlier, 37.071, 2(a), As we Article stated punishment, any issue at relevant or VAC.C.P., provides may that evidence be probative substantially relevant its value was presented litigants any by the “as to matter by danger outweighed prejudice. its of unfair to sentence!!.]” court deems relevant 402 See Tex.R.Crim.Evid. and 403. We will permitted also is We observe that the State argument in address each turn. present jury argument 37.071, 2(a), V.A.C.C.P., Article 37.071, receive a sentence of death. Art. provides may by presented that “evidence 2(a), be V.A.C.C.P. and the defendant or the defen [S]tate Appellant acknowledges that victim dant’s counsel as to matter that court Payne, under be allowed but Mayo sentence[.]” deems relevant to See admissibility insists such is since 854, (Tex.Cr.App.1986). 708 858 S.W.2d relevance, couched in terms of such evidence penalty A stage trial court at the aof it is irrelevant inadmissible because admitting trial murder has wide discretion in “[sjueh He asserts that issues. evi- excluding or evidence. Lane v. 822 way dence can in assist the in an- no 35, (Tex.Cr.App.1991), 41 de S.W.2d cert. swering Specifically any special issue.” toas nied, 1968, 112 504 U.S. 118 S.Ct. issues, he insists that “whether (1992); 568 Briddle L.Ed.2d sinner, victim is saint or the victim’s (Tex.Cr.App.1987), cert. de spiritual way a jury in no assist status can nied, S.Ct. determining an accused whether would com- (1988). L.Ed.2d 573 violence!!,]” mit future criminal acts of Tennessee, Payne spirituality way that “a can in victim’s no (1991), L.Ed.2d 720 the Unit determining assist a whether appel- Supreme ed States addressed actually lant the deceased’s death or caused scope and relevance of victim im so-called that he kill intended to the deceased or an- pact evidence. The Court noted that it was other, anticipated that a that he human may properly “now of the view that a State life would taken.” He adds that “the meaning conclude that for the assess goodness of a victim is or badness fully culpability the defendant’s moral proper determining per- circumstance in
blameworthiness, it should it at have before sonal, defendant!!,]” culpability moral sentencing phase specific evidence of the questions he should “be damned Id., harm caused the defendant.” *8 saint, killing canonized for while elimi- 2608, 115 U.S. at S.Ct. at L.Ed.2d at nating a sinner?” regard It stated that with to the harm 735. caused, killing nothing that the had “there is impact We that the term “victim observe allowing unfair about to bear appear evidence” in the Texas does not Rules that harm at the same mind time as consid provide do of Criminal Evidence. Our Rules mitigating ers the evidence introduced generally relevant evidencе admissi- defendant.” Id. 501 U.S. 111 S.Ct. at ble, while evidence which is relevant is 2609, 115L.Ed.2d at 736. 402. As inadmissible. Tex.R.Crim.Evid. above, quoted Supreme the U.S. Court has Payne specifically held if “that the State punishment setting, “[a] held in a permit chooses to the admission of victim may legitimately conclude State that evi- impact prosecutorial argument evidence and impact about the subject, Eighth dence about the victim and on that Amendment family may Id. murder on the victim’s is rele- per erects no se bar.” “A State as to or legitimately vant decision whether conclude evidence about imposed!!,]” penalty on not the should be victim and about the murder death - (1993) L.Ed.2d 378 to treat such S.Ct. is no reason “[t]here and that -, 128 L.Ed.2d differently 114 S.Ct. than other relevant evi U.S. evidence (1994). relevancy reviewing a trial court’s Payne, supra. As noted In treated.” dence is standard, V.A.C.C.P., 37.071, 2(a), above, pro abuse of discretion Art. decision via the ruling least was at present long evidence the trial court’s vides that the State as disagreement, rele any matter that the court deems of reasonable “as to within the zone jury argument Montgomery v. present vant to sentence” will not intercede. we (Tex.Cr.App.1990) (op. a sentence of for the defendant receive Thus, statutory proce our Texas reh’g). death. must determine on We admissibility cause, of evi provide for the abused its dures the trial court the instant to sentence^]” dence “relevant determining that the discretion “ father, mother, sisters decedent’s hav- means evidence ‘Relevant evidence’ sentence^]” was “relevant any tendency make the existence of consequence to the deter- fact that is of In Miller-El probable more or less mination of the action penalty sit (Tex.Cr.App.1990), in a non-death the evi- probable than it would be without uation, that evidence of this held Court 401. At sentenc- dence.” Tex.R.Crim.Evid. injury, extending into degree of even jury in the ing, pursuant to Art. 37.071 the future, punishment be admissible at was statutory cause had to answer the instant on the defendant’s such evidence bore cause asked: issues which case, In that moral blameworthiness. defendant, probability that the Is there injury actu specifically noted Ford, Tony commit criminal acts of paral complainants, ally to one of the caused a con- [sic] violence that would consititue moral ysis, outrun the defendant’s did not society? tinuing threat to the defendant was blame culpability, thus beyond a you from the evidence Do find worthy. at 897. Id. Ford, Tony the de- reasonable doubt that (Tex.Cr. Stavinoha himself, actually caused the death fendant situation, penalty a non-death App.1991), also deceased, Murillo, Jr., on of Armando adduced involved evidence question, or he did the occasion psycho assault’s aggravated sexual about the death, actually that he cause deceased’s complainant the child logical aftereffects another, to kill the deceased or intended such concluded that and on his mother. We anticipated that a human life would that he bearing defendant’s] on [the “had a evidence taken? guilt,” responsibility and his moral personal Taking all of the evi- into consideration Id. at therefore admissible. and was dence, including the circumstances of the
offense, cause, character the defendant’s was In the instant culpa- background, personal moral and the issue which required to answer defendant, find, you bility of the do cul “personal moral appellant’s about asked issue, mitigating circum- answering there is a sufficient pability^]” language warrant that a or circumstances to about stance included jury’s instructions imprisonment rather than of life “moral blame affecting appellant’s sentence imposed? Thus, sentence be moral blame death worthiness.” definitely at culpability was worthiness and per Article also instructed See, Penny Ly e.g., punishment. issue at V.A.C.C.P., 37.071, 2(f)(4), “mitigating *9 that 2934, 106 naugh, 109 S.Ct. juror might re- is evidence that (1989). 256 L.Ed.2d moral reducing defendant’s gard as blameworthiness.” testimony-at- particular upon the Based punishment admitted at into evidence left issue
Questions of relevance should be cause, to con- we are unable court, not be in the instant trial and will largely to the discre- abused its that the trial court clude an of discretion. absent abuse reversed (Tex.Cr.App.1993), testimony was concluding such State, in that tion 463 Moreno v. 858 S.W.2d — In this denied, U.S. -, punishment issues. to the 114 relevant t. cer ease, 35-year pa- tentative decision to include the particular we conclude that the trial eligibility in the role instruction testimony, pre- to admit such court’s decision away in jury charge “keep but to from it voir sentence,” sumably was at as “relevant dire.” disagree- least within the zone of reasonable
ment. permissible, is the trial court instructed As appellant that the minimum time if Appellant also asserts that even the eligible parole being before would serve remotely testimony even relevant re was However, years.4 litigants were was 35 issues, garding the trial court potential jurors dire the not able voir its discretion in admit nevertheless abused subject. Appellant argues concerning this testimony objec ting over his Rule 403 such right instruc- that because he had the argues sight Appellant tion. that “such concerning рarole, have been tion he should surviving crippled from a vic concerning pa- proper questions able to ask only prejudicial tim could serve to have a State, Lane 828 S.W.2d role. See jury, thereby outweighing any effect on the (defendant per- (Tex.Cr.App.1982) assisting probative value it have juror question potential upon defi- mitted to determining Ap issues.” doubt). nition of reasonable appellant suggesting a wit parently, is determine whether the We must crippled during the course ness who has been improp court its discretion and trial abused at bar should not be allowed to offense Woolridge erly appellant’s voir dire. limited testify. State, (Tex.Cr.App S.W.2d provides Rule 403 that relevant evidence .1992); 808 S.W.2d Nunfio “may probative if value is be excluded its propriety of the (Tex.Cr.App.1991). The substantially outweighed by danger of question generally is determina be asked reviewing prejudice....” unfair After Woolridge, at tive the issue. record, the trial we cannot conclude 904; question A Nunfio, 808 at 484. S.W.2d concluding court its discretion in abused juror’s proper if to discover it seeks testimony’s probative value was not such applicable to the case. on an issue views substantially outweighed by danger of 904; Nunfio, Woolridge, prejudice. Montgomery v. unfair however, Generally, parole is S.W.2d at Aсcordingly, appellant’s at 391-93. S.W.2d for the in a proper not a point third of error is overruled. capital case. Smith v. S.W.2d (plurality opinion) (Tex.Cr.App.1995) 846-53 III. (Overstreet, J., dissenting). Appellant would potential permitted inquire have been JURY SELECTION they ignore parole con jurors whether could error, point appellant as- In his second Smith, 898 sequences in their deliberations. allow- that the trial court erred serts 852-53; and cases cited therein. ing him dire the veniremembers re- to voir Questions concerning actual number of appellant would garding the minimum time however, proper years, are not a area being eligible parole. have to serve before Accordingly, the inquiry for veniremembers. did not make or We note in so trial court did not abuse its discretion exceptions request a bill of as to to make limiting appellant’s dire. The second voir had questions he would have asked he what point of error is overruled. might procedure been allowed. Such determining the trial court useful IV. also note that abused its discretion. We GUILT/INNOCENCE (fed- make a constitutional appellant did not error, state) point appel argument, and In his fourth deprivation eral failed to argues the trial court trial court’s lant agree with the fact seemed appellant was after *10 appellant's not rule on that until Although did consider motion 4. the court jury upon guilty. the minimum to instruct the motion found dire, years prior did to voir the court number of
117
(Tex.Cr.App.1988),
State,
263, 269
760
by
him
v.
Webb
suppress the in-court identification
910,
denied,
109
491 U.S.
t.
sisters,
Magdale-
Myra
Lisa and
the Murillo
cer
(1989).
3202, 105
709
L.Ed.2d
S.Ct.
identifica-
Appellant asserts his in-court
na.
by
improper pre-trial
photo-
tainted
an
appellant’s
tion was
Myra
picked
Murillo
State,
In
v.
procedure.
line-up
Webb
on December
graph
photographic
identification
in a
Lisa,
19,
sister,
selected
pre-trial
likewise
addressed the nature
Her
this Court
Ap-
week later.
appellant approximately one
procedures.
identification
pro-
pretrial
the
identification
pellant asserts
may
pretrial
procedure
A
identification
upon the
impermissible based
was
cedure
unnecessarily suggestive and condu
so
be
perpe-
the
description of
comparison of the
that to use
mistaken identification
cive to
by Myra at the time
given
trator
deny
trial would
the
that identification at
appearance at trial.
appellant’s
offense and
v.
process of law. Stovall
accused due
does not indicate
Appellant’s assertion
1967,
Denno,
293,
18
388
87 S.Ct.
U.S.
im-
line-up was somehow
photographic
the
(1967). However, it
1199
is
L.Ed.2d
argues
suggestive, but rаther he
permissibly
“substantial likelihood of misidentification”
is not
the sisters identified
that the individual
by
sugges
engendered
such
be
offense.
who committed the
the individual
deprivation.
procedure
tive
works the
showing
photographic line-
a
Absent
States,
377,
v.
390 U.S.
Simmons
United
suggestive, the
impermissibly
identifi-
up was
(1968);
967,
Broxton v.
impact
of a
victim
evidence
the course
App.1995); Smith v.
is, thus, purely a
capital
prosecution
murder
—
denied,
(Tex.Crim.App.),
845-853
cert.
function of state law. That victim
-,
H9 deceased, ask, any the or either intended it of death of trial court must as would the the 2(b)(2). death, § anticipated under or at least to more Does it tend make other evidence: statutory aggravating circum- These are the probable any special of the issues or less jury not find to be If the does them stances. way or other? be answered one the should doubt, capital beyond a the true reasonable Tex.R.Cr.Evid., trial Rules 401 & 402. If the impris- must be sentenced life defendant relevant, further upon concludes it is court 37.071, § If —but 2(g). onment. See Article may upon Is objection it called to decide: be statutorily jury find the only if—the does substantially probative outweighed the value exist aggravating circumstances to defined danger prejudice? Tex. by the of unfair doubt, proceeds it under beyond a reasonable R.Cr.Evid., Rule 403. 2(e) § cir- mitigating to determine whether argues prof- that the it The State evidence life to “warrant” cumstances are “sufficient” in this relevant the fered cause was mitigating imprisonment. If circumstances 37.071, 2(e), § supra, defined Article issue sufficient, court sentence “the shall are provision places as that in issue “the insofar 2(g), supra. § to death.” the defendant personal culpability moral of the defen- likely by designating It seems to me argument This turn raises two dant!!.]” alia, 2(e) consider, jury §in inter 2(e) First, exactly § questions. what of does offense, of evidence of “the circumstances the contemplate it Article 37.071 when directs background, character and the defendant’s evidence, jury of the to consider “all the personal culpability moral of the and the including personal culpability ... the moral defendant,” jury Legislature the intended the Secondly, the does the defendant”? only aspects those of the to take into account impact” “victim evidence in this case State’s offense, only those facets the defen bearing legislative conception have a on the character, background personal dant’s culpability”? “personal moral of a culpability, that militate in. favor moral all, it After before even reach life sentence. II. 2(e), jury findings § made has es constitutionally “aggravating” fact that are A justify imposition of the sufficient 2(e), 37.071, § jiuy Article Under clear, penalty. It is as borne out death already has the first answered two Bill Analysis accompanying Bill Senate affirmatively go must on to decide: issues 2(e) § Article the addition of “Whether, taking into all hold meant to accommodate the 37.071 was evidence, including the circum- Penry ing Lynaugh, offense, stances defendant’s (1989), that an L.Ed.2d background, person- character and and the provided adequate vehicle must be defendant, culpability al moral there mitigat jury the full measure of to effectuate mitigating is a sufficient circumstance or Leg., ch. Acts 72nd evidence. See circumstances to warrant that a sentence 1, 1991. 838, 1, jury p. Sept. § eff. imprisonment rather a death of life than mitigating to be evidence is told “consider imposed.” sentence be juror might regard reduc that a as evidence issue, jury it ever Before reaches moral ing the defendant’s blameworthiness.” findings make a of fact 2(f)(4). 2(e) must number 37.071, § § issue Article jury against the defendant. First the specifically upon calls to decide itself him guilty must find of one the offenses mitigating ... cir exist “sufficient there Code, § in V.T.C.A Penal 19.03. imposition enumerated life to warrant” cumstances trial, Proceeding phase contrast, By rather sentence than death. susceptible the defendant before that it consider is never instructed increasing must is a penalty might regard find there as any death acts of probability he will commit criminal moral blameworthiness. the defendant’s continuing Thus, squarely focuses that would constitute a issue violence 37.071, death-eligible should society, under Article defendant threat 2(b)(1), It can be ar actually spared. well and that he either caused nevertheless gued that narrowing function of Article life spared. Penry Lynaugh, should be 2(b), accomplished 37.071 has been supra, 328, 109 S.Ct. at why additional evidence a death- Probаbly L.Ed.2d at 284. such a scheme eligible executed, ought defendant to be not pass long constitutional muster. As *13 withstanding mitigating circumstances, is 2(b) special § adequately issues serve 2(e) simply § not relevant inquiry. By to the statutorily “narrowing” aggravators, this accounting, any proffered “victim im likely does not Eighth offend the Amend pact” evidence that was not somehow rele jury ment to allow the also to consider non- 2(b) § vant to the issues would be statutory aggravating factors at the subse punishment phase inadmissible at the of a quent stage. “selection” See v. Zant Ste capital murder trial. 862, phens, 878-79, 462 U.S. at 103 S.Ct. 2733, 2743-44, 235, at 77 L.Ed.2d at 250-51 2(e) hand, § On the other does not ex- (1983); Tuilaepa California, v. 512 U.S. pressly jury’s solely limit the - at -, 2630, 2638, at S.Ct. 129 L.Ed.2d crime, aspects of the of the defendant’s char- (1994).1 750, at 763 It is clear that background, acter and personal and of his 2(e) Legislature specifically § intended culpability, moral against pen- that militate jury serve as a conduit for consideration of alty of It might plausibly death. also be mitigating evidence that 2(e) is not relevant argued § contemplates jury that the 2(b) § Legisla issues. Did the should aspects take into account all 2(e) crime, § ture also open intend that should defendant’s character and back- ground, door to culpability, non-statutory aggra and his moral consideration of non-statu- tory aggravating vating mitigating, in making circumstances at “selection” its judgment” “reasoned moral stage?2 whether his 37.071,
1. I hesitate to conclude that consideration of
2. Prior to the 1991 amendment to Article
non-statutory aggravators
clearly
2(e),
in Texas would
capital sentencing
§
which added
the Texas
Eighth
scrutiny.
survive
Amendment
At least
"narrowing”
scheme did not embrace discrete
Supreme
gave
one
approv
reason the
Court
stages. "Narrowing”
and “selection”
occurred
non-statutoiy aggravators
consideration of
trial,
guilt phase
jury
at the
where the
deter-
Georgia
under the
Stephens
scheme in
v.
Zant
mined whether the defendant committed murder
Georgia Supreme
was the fact that the
Court is
kind,
circumstances,
Legis-
or under
that the
required
proportionality
to conduct a
review of
enough
lature
eligibil-
deemed severe
to merit his
penalty
appeal.
all death
cases on
Such a re
ity
penalty.
“narrowing"
for the death
Both
view,
Supreme
emphasized,
Court
assures
(of
sort)
punish-
"selection”
occurred at the
arbitrarily
death sentence is not
im
phase.
simply
ment
The State
could not execute
890,
posed.
viving
members’ characterizations of
(Tex.Cr.
Richardson v.
pact” in evidence condemned Booth and yet The Court has said whether this subsequently Gathers were constitu deemed prerequisite jury is a nebulous “nexus” Tennessee, acceptable tionally Payne in mitigating under consideration of evidence supra, pressed we would be hard tо conclude 2(e).3 § It special in would not issue 2(e) Legislature § that the meant for to au certainly I surprise (though me dis- their thorize admission. agree) jury were the Court to hold that complicates under mitigating
The second event evidence consideration 2(e) question showing § non-statutory aggravators contingent upon' a was requirement capital Court’s that a the facts and circum- [with] defendant “connection in proffered show a “nexus” between his miti- criminal acts the instant [the] stances of Lackey, hap- gating supra. evidence and the on trial. case.” If that were to offense 2(e) 2(e) § § Prior special pen, to the addition of the we also to hold that were issue, non-statutory aggrava- treating in a claim that evi- of evidence of certain admits would, circumstances, proffered mitigation ting issue dence the death another penalty jury course, have supplemental called for in- arise. For we would then satisfy must Penny, struction of some kind the State show decide rejected char- Court often claim on the evidence of “the defendant’s basis whatever personal background, that the had not acter and [his] defendant demonstrated a culpability” proffers persuade proffered “nexus” evi- moral sufficient between penalty particular and the offense he was on he should receive the death has dence said, example, the facts and trial for. The Court for a sufficient “connection [with] being acts” Lackey [the] at 134-35 circumstances of criminal may "jury available to the say evidence not be consideration" rather than "admis- same Evidence, 2(e) § sibility” particular for in its on the for a reason here. deliberation nature, prob- special aggravating mitigating kind an issue. Evidence of this should either admitted, ably subject request be relevance to a from well admissible because its 2(b). opponent limiting § instruction under Tex. issues under Be- one Evid., 105(a). requirement, Rule cause of Court's nexus R.Cr. tried before it can be deemed “relevant” to non-statutory consideration of aggravating 2(e) § words, issue. In other circumstances. jury consideration of non-statutory mitigat- First, “object sought to be obtained” depends showing on a of “nex- 2(e) adding § compliance Penny with us,” non-statutory should not aggravating ev- Lynaugh, supra. In the wake of the decision idence be likewise conditioned? Penny, struggled trial courts with how to fashion a instruction that would autho
c. rejection rize of the death sentence on the argues mitigating The State basis of evidence that so-called “victim has no rele impact” statutory special vance to evidence in this cause is relevant issues. See McPherson, (Tex.Cr. appellant’s “personal State v. moral blameworthi- S.W.2d 846 2(e). App.1992). Except ness” under only This can this one defect identi be true if 2(e) Legislature Penry, fied always intended for Article 37.071 had spe- passed Eighth cial inquiry, only issue be an Amendment muster. Adding into why non-statutory reasons death-eligible aggravating circumstances to defen- death, dant mix put constitutionally should not be was not required, but also into why might Eighth reasons even he should. create Amendment Does the *15 problems. only issue admit not See n. ante. It “reducing of evidence is doubtful that, except defect, blameworthiness[,]” remedy Penry the defendant’s moral the the Legislature but tamper also of evidence intended to increasing it as with an oth well? erwise tried and punishment pro true Of course the first and best indication of “history” cedure. Given the and “circum legislative 2(e) intent language § the of 2(e) enacted, § stances under which” I itself. meaning When the of a statute is Legislature doubt the gave any thought face, plain on give its plain we effect to that authorizing whatsoever to consideration of meaning without Boykin further ado. aggravating beyond circumstances those enu 785 (Tex.Cr.App.1991). 2(b). §in merated 2(e) §But plainly speak does not to whether non-statutory aggravating circumstances are Legislature When jury the means for the weighed be deciding the balance in to consider aggravating mitigating both and mitigating whether circumstances are “suffi- circumstances, capable making it is of its cient ... to warrant” a life sentence. We abundantly intent In legisla- clear. the same must resort to other Legisla- indicia of the 2(e), § tion Legislature that added also ture’s intent. jury guide added a instruction to delibera- 2(b) Thus, § tions on the issues.
The provides: Code Construction Act 37.071, 2(d)(1) reads, § Article now in rele- statute, “In construing or part: vant ambiguous statute is considered on its “(d) charge The court jury shall face, a court among consider other that: matters the:
(1) object obtained; sought (1) to be deliberating on the issues submit- ute was (5) consequences (3) legislative history; (2) circumstances under which the stat- [*] enacted; : n [*] n particular [*] [*] eon- the death dant’s shall ted under Subsection cumstances of the offense that militates consider background mitigates against penalty[.]”4 ... or character or evidence of the defen- (b) this imposition article, cir- it struction[.]” 1,§ Leg., p. See Acts 72nd ch. Code, § V.T.C.A. Government 311.023. All Sept. eff. 1991. The absence of 2(e) these extra-textual comparable considerations militate language suggests §in 2(e) against § construing jury Legislature authorize if thought at all about autho- Emphasis supplied. 2(e) jury ag- § authorizes consideration rizing jury non-statutory hold consider offense, factors, gravating rejected only the idea. of “the circumstances background, and character defendant’s Turning consequences particu- to “the culpability” cut 2(e) construction,” personal moral reading § I [his] lar fear that It contemplate jury of non- a sentence death. against imposition statutory aggravators would create serious consideration of non-statu- not authorize does implementation problems of trial tory aggravating circumstances.6 ante, For, developed courts. as have even Legislature generally intended III. weigh non-statutory aggravators should against mitigating the defendant’s evidence testimony issue majority details the 2(e) deliberations, presume. we its must brief, two deceased’s in this cause. Legislature did mean authorize impact of the of- about the sisters testified any impact” admission of so-called “victim fense, brother, upon of the loss of their evidence, at least not of the kind that Booth They their mother their lives. testified that And had declared inadmissible. Gathers been an invalid who needed had rendered presumably requirement we “nexus” her- daily The mother care attendance. might impose predicate on defendants аs testified to much same effect. self mitigating consideration of un- his father testified of residual deceased’s 2(e) imposed der equally majori- family. fear for himself and his See permitted State before the would be Obviously ty opinion at 121-122. none non-statutory aggrava- consider evidence theory was offered on the Distinguishing aggravating cir- tors.5 those reducing jury might regard that “a [it] cumstances that are admissible under *16 moral blameworthiness.” the defendant’s from prove those that are not would tortu- 2(f)(4), 37.071, supra. § does Article Nor process ous indeed! testimony family’s the contend that the State short, Legislature surely did almost any under relates to issues jury contemplate not deliberation of non-stat- 2(b). 2(e) § § Because I conclude that does aggravating utory in the circumstances jury not authorize 2(e) § death-eligible “selection” those de- that the defendant’s moral blame- increases spared fendants who should that ultimate worthiness, testimony I would hold that the 2(e) penalty. any- § To construe to allow it relevant, and at issue in this cause was not way potentially threatens the constitutionali- admissible, scheme, ty purpose. not nightmare therefore for of our and would be a implement. supra.7 to For I court these reasons would Rules 401 and trial 2(e) non-statutory already aggravating § 5. We hаve to factors. If held evidence of as contemplate jury deceased’s bad character is not admissible non- does not consideration of capital to relevant reduce defendant's moral statutory aggravators place, in the first then sure- 2(e), § blameworthiness under least when failing ly err in to the trial court could not the defendant was unaware of that bad charac- jury has some burden instruct the State State, ter. Alvarado v. at 217 State, See, e.g., prove to them. Lawton (“In (Tex.Cr.App.1995) view ... a our reasonable ("We (Tex.Cr.App.1995) are S.W.2d juror prior could not conclude that the victim’s argument respect by appellant’s with confused (an officer) police act assault on a tended to bad aggravating Article 37.071 evidence under the defendant’s moral blameworthiness lessen (2)(e) jury § it does not ask the to consider since of that victim when the defendant for murder evidence."). aggravating But if we construe act.”). pre- was unaware of victim’s bad I 2(e) non-statutory aggravators, § to allow for naively) (perhaps (for require- sume that this "nexus” we of these then will have to entertain merits is) applied as ment that is what it would be constitutionally defec- the statute is claims that good deeds and well to evidence the victim’s proof. failing assign a burden of tivе for character, 2(e) § we even if were to declare that non-statutory aggravators. generally admits of is not I conclude the State’s evidence 7.Because relevant, proba- whether the I need not address holding dispose 6. also a Such fortiori may have sub- tive of the evidence been value have the numerous claims we seen recent 37.071, outweighed by 2(e) stantially potential unfair its for that Article is unconstitu- months assign proof prejudice fails under Rule tional because it a burden in this cause erred appel- to admit it over disposition control of the issue before us in objection. lant’s today. case majority cites non-capital two Finally, cases I say do not think we can proposition admitting evidence such as error in in this cause that admitted bearing here has a person beyond was harmless a reasonable doubt. culpability 81(b)(2). al moral Tex.R.App.Pro., and is admissible at the Rule The Court punishment phase. State, already See Miller-El has said that it cannot review the 2(e) (Tex.Cr.App.1990); finding S.W.2d 892 “sufficiency” under Stavin oha v. process the evidence (Tex.Cr.App. S.W.2d 76 because the of deter- 1991). mining mitigating But in each explic of those cases we evidence calls for itly recognized a life sentence is a judgment, value non-capital left to the set ting, “admissibility unfettered discretion pun evidence at factfinder. The said, process, phase ishment we have essentially ... an in- policy is a function of one, impervious scrutable Miller-El, appellate rather relevancy.” than review. supra, See Colella v. at 895. at 845 Because there are no issues of fact Id., (Tex.Cr.App.1995). agree. I punishment at 848 phase non-capital (Clinton, J., true, trial, dissenting). being That felony upon we have had to fall back do not see meaningfully how we could deter- determinations of what is “appropriate” for mine whether allowing jury erroneously is, to consider rather than what to consider non-statutory aggravating cir- strictly speaking, “relevant.” Murphy See cumstances mix (Tex.Cr. “contributed” to at 62-63 negative burden, course, its answer. The App.1988) (Plurality opinion on motion for is on the State. That means that when we rehearing). In Miller-El and Stavinoha we cannot tell whether error contributed deemed long-term physical psycho assessed, punishment obliged we are logical upon effects loosely the victims punishment remand the cause for a new offense,” constitute “circumstances of the proceeding. 44.29(c), See Article V.A.C.C.P. and hence “appropriate” for the to con It seems to position me wе are no sider in assessing a term of declare allowing that error in statutory within the range. consider evidence that increases *17 capital context, however, is different. moral blameworthiness to be harmless be- punishment capital assessed in a case is yond a reasonable doubt. death,
either life or governed and is exclu- above, given For the reasons I would va- sively by resolution of the Article judgment cate the of the trial court and 37.071 Only issues. evidence rele- remand the cause punishment pro- for a new vant specific to those issues be admitted ceeding. not, Because the Court does I re- objection. over Because do not believe spectfully dissent. authorizes consideration of “cir- qua cumstances of the aggravating offense”
circumstances, they I do not believe are rele- determining
vant to the defendant’s death-
worthiness in the stage capi- “selection” of a punishment
tal proceeding, Miller-El and notwithstanding.8
Stavinoha That evidence subsequent pain suffering surviving
victims can be admitted
phase non-capital felony trial does not suggest aggravating I do not mean to might cir- A struction, defendant however, be entitled to an in- wholly cumstances of the offense are inadmissi- jury's they ble. Of course are admissible to the extent of that evidence be limited to its consideration of issues, 2(b) i.e., they bear on the whether the 2(b) Tex.R.Cr.Evid., 105(a). issues. Rule danger, defendant will be a future or whether he See n. ante. was at likely least aware that death would occur.